O'Shea v. P.C. Richard & Son, LLC et al

Filing 55

OPINION AND ORDER: re: 35 MOTION to Dismiss filed by P.C. Richard & Son, Inc., P.C. Richard & Son, LLC. For the foregoing reasons, Defendants motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) is GRANTED, and Plaintiffs' First Amended Complaint is DISMISSED WITHOUT PREJUDICE. Plaintiff Trisal's request for leave to amend is DENIED. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. SO ORDERED. (Signed by Judge Katherine Polk Failla on 8/03/2017) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------X
:
KATHLEEN O’SHEA and SANDEEP TRISAL, :
on behalf of themselves and all others
:
similarly situated,
:
:
:
Plaintiffs,
:
v.
:
:
P.C. RICHARD & SON, LLC d/b/a P.C.
:
:
RICHARD & SON and P.C. RICHARD &
SON, INC. d/b/a P.C. RICHARD & SON,
:
:
Defendants. :
:
------------------------------------------------------ X
KATHERINE POLK FAILLA, District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
August 3, 2017
DATE FILED: ______________

15 Civ. 9069 (KPF)
OPINION AND ORDER

Plaintiffs Kathleen O’Shea and Sandeep Trisal bring this class action
against Defendants P.C. Richard & Son, LLC and P.C. Richard & Son, Inc., for
violations of the Fair and Accurate Credit Transactions Act of 2003, 15 U.S.C.
§§ 1681-1681x (“FACTA”). Plaintiffs O’Shea and Trisal each allege that upon
making a purchase at one of Defendants’ locations, Defendants printed on their
receipts the expiration dates of their debit and credit cards, respectively, in
violation of 15 U.S.C. § 1681c(g).
Defendants have moved to dismiss Plaintiffs’ First Amended Complaint,
the operative complaint in this case, pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). They argue that (i) Plaintiffs lack Article III
standing because they allege only a bare procedural violation and no actual
harm or material risk of harm, and (ii) Plaintiffs failed to allege adequately a

willful violation of FACTA. Plaintiffs oppose the motion, and Plaintiff Trisal
seeks leave to file an amended complaint if the motion is granted.
The parties’ arguments are impacted significantly by a recent Second
Circuit decision: Crupar-Weinmann v. Paris Baguette America, Inc., 861 F.3d
76 (2d Cir. 2017). In light of the holding in that case and for the reasons set
forth below, Defendants’ motion to dismiss is granted and Plaintiff Trisal’s
request to file a Second Amended Complaint is denied.
BACKGROUND 1
A.

Factual Background
Plaintiffs allege that Defendants have willfully and repeatedly violated

FACTA by printing expiration dates on credit and debit card receipts. (See
generally FAC). FACTA provides in relevant part that “no person that accepts
credit cards or debit cards for the transaction of business shall print” an
improperly truncated receipt — one that contains more than five digits of the
card number or the expiration date. 15 U.S.C. § 1681c(g). Defendant P.C.

1

The facts set forth herein are drawn from Plaintiff’s First Amended Class Action
Complaint (“FAC” (Dkt. #33)), the operative complaint in this case, and the transcript of
a conference the Court held on August 18, 2016 (“Transcript” (Dkt. #31)).
Where appropriate to its analysis, the Court will also reference Plaintiff Trisal’s receipt
(“Trisal Receipt” (Dkt. #37-1)), which was attached to the Declaration of Jonathan A.
Direnfeld (Dkt. #37). On a Rule 12(b)(1) motion, “where jurisdictional facts are placed
in dispute, the court has the power and obligation to decide issues of fact by reference
to evidence outside the pleadings,” including affidavits and exhibits. Feldheim v. Fin.
Recovery Servs., Inc., — F. Supp. 3d —, No. 16 Civ. 3873 (KMK), 2017 WL 2821550, at
*2 (S.D.N.Y. June 29, 2017) (quoting Tandon v. Captain’s Cove Marina of Bridgeport,
Inc., 752 F.3d 239, 243 (2d Cir. 2014)).
For ease of reference, the Court refers to Defendants’ Memorandum of Law in Support
of Their Motion to Dismiss as “Def. Br.” (Dkt. #36); to Plaintiffs’ Memorandum of Law in
Opposition as “Pl. Opp.” (Dkt. #40); to Defendants’ Reply Memorandum of Law as “Def.
Reply” (Dkt. #44); and to the parties’ Supplemental Memoranda of Law as “Def. Supp.”
(Dkt. #53) and “Pl. Supp.” (Dkt. #54).

2

Richard & Son, LLC owns and manages several retail store locations. (FAC
¶ 11). Defendant P.C. Richard & Son, Inc. also owns and manages several
retail stores and does business with P.C. Richard & Son, LLC. (Id. at ¶ 12).
The two entities collectively use the business name “P.C. Richard & Son.” (Id.).
Sometime after November 17, 2013, Plaintiff O’Shea made a purchase at
one of Defendants’ locations and Defendants provided her with one or more
receipts that included the expiration date of her debit card and the last four
digits of her card number. (FAC ¶ 35). On or about November 2, 2015,
Plaintiff O’Shea’s counsel served Defendants with a cease and desist letter
demanding that Defendants end their FACTA violations. (Id. at ¶ 45). Attached
to the letter was a draft complaint. (Id.).
On May 2, 2016, Plaintiff Trisal received from Defendants a receipt that
“contained, among other things,” his credit card’s expiration date and the last
four digits of his card number. (FAC ¶ 45). The First Amended Complaint does
not clarify what these “other things” are.
Plaintiffs allege that Defendants continued to print expiration dates on
credit and debit card receipts in violation of FACTA until at least August 17,
2016. (FAC ¶ 45). Plaintiffs also allege that these FACTA violations were willful
because Defendants (i) “knew of and were well informed about the law” (id. at
¶ 39); (ii) were informed by other entities of FACTA’s truncation requirements
and the prohibition on expiration dates (id. at ¶ 40); (iii) knew their electronic
receipt printing equipment was outdated, but forewent the proper updates to
avoid spending the money, time, and other resources required (id. at ¶ 44); and
3

(iv) were put on notice of their FACTA violations by Plaintiff O’Shea’s letter and
Complaint (id. at ¶ 45). Plaintiffs further allege that because Defendants
printed their cards’ expiration dates on their receipts, Plaintiffs were exposed to
“an increased risk of identity theft and credit and or debit card fraud,” though,
significantly and fortunately, neither alleges that such identity theft or fraud
actually occurred. (Id. at ¶ 51).
B.

Procedural Background
This case has been significantly impacted by the litigation of another

case initially filed in this District: Crupar-Weinmann v. Paris Baguette America,
Inc., No. 13 Civ. 7013 (JSR) (S.D.N.Y.). During the pendency of this litigation,
the Second Circuit has reviewed Crupar-Weinmann twice; first in CruparWeinmann v. Paris Baguette America, Inc., 653 F. App’x 81 (2d Cir. 2016)
(summary order) (“Crupar-Weinmann I”), and again in Crupar-Weinmann v.
Paris Baguette America, Inc., 861 F.3d 76 (2d Cir. 2017) (“Crupar-Weinmann II”).
In brief, Plaintiff Crupar-Weinmann alleged that Paris Baguette violated FACTA
by issuing a receipt with the full expiration date of her credit card on it.
Crupar-Weinmann I, 653 F. App’x at 81. And, as in the instant case, CruparWeinmann did not allege any actual harm, such as identify theft or credit card
fraud. Id. Crupar-Weinmann I and II bear directly on the arguments raised by
the parties in this case. Consequently, the Court considers the instant case’s
procedural history in light of both Crupar-Weinmann decisions.

4

1.

Plaintiffs’ Pleading and Crupar-Weinmann I

Plaintiff O’Shea filed the original Complaint in this matter on
November 18, 2015, alleging debit card violations of FACTA. (Dkt. #1). On
January 29, 2016, Defendants filed a letter motion requesting an extension of
time to answer the Complaint in light of the Second Circuit’s then-pending
decision in Crupar-Weinmann I. (Dkt. #12). Defendants’ basis for their request
was that the decision in Crupar-Weinmann I would address pleading standards
for willfulness under FACTA and would “directly impact whether Defendants
move to dismiss the Complaint[.]” (Id. at 1). The Court granted Defendants’
letter motion on February 1, 2016, and stayed this case pending the Second
Circuit’s decision in Crupar-Weinmann I. (Dkt. #13).
The Second Circuit issued Crupar-Weinmann I on June 30, 2016. See
Crupar-Weinmann v. Paris Baguette America, Inc., 653 F. App’x 81 (2d Cir.
2016) (summary order). There, the Second Circuit remanded the case, allowing
Crupar-Weinmann to replead her FACTA claim to meet the standard recently
established by the Supreme Court in Spokeo, Inc. v. Robins, 136 S. Ct. 1540
(2016), that plaintiffs alleging statutory violations show concrete injury to
establish Article III standing. Crupar-Weinmann I, 653 F. App’x at 82.
On July 7, 2016, the parties submitted a joint letter requesting that the
Court lift the stay in this case and stating that Plaintiff O’Shea would not
amend the existing Complaint despite the concerns Crupar-Weinmann I raised
about concrete injuries and Article III standing. (Dkt. #18). The Court granted
that application in a July 8, 2016 endorsement. (Dkt. #19).
5

On August 11, 2016, Defendants filed a letter announcing their intention
to move to dismiss Plaintiff O’Shea’s Complaint pursuant to (i) Federal Rule of
Civil Procedure 12(b)(1) for failure to establish Article III standing and
(ii) Rule 12(b)(6) for failure to state a claim for a willful violation of FACTA.
(Dkt. #24). Plaintiff O’Shea filed a letter response on August 15, 2016. (Dkt.
#27).
At a conference on August 18, 2016, Plaintiff O’Shea’s counsel informed
the Court that he had been retained by another plaintiff who had received a
credit card receipt from Defendants in May 2016 that violated FACTA, though
he did not identify the plaintiff at that time. (Transcript 3:14-4:3). O’Shea’s
counsel then stated his intention to amend the original Complaint to include
credit card violations (at the time, it included only debit card violations (see
Dkt. #1 at ¶ 33)), to bolster willfulness allegations, and potentially to add a
second plaintiff. (Transcript 6:3-19). On September 24, 2016, Plaintiffs O’Shea
and Trisal filed the First Amended Complaint, which included all of these
proposed modifications. (Dkt. #33).
2.

Defendants’ Motion to Dismiss and Crupar-Weinmann II

On October 21, 2016, Defendants moved to dismiss the First Amended
Complaint. (Dkt. #35-37). Plaintiffs opposed the motion on November 21,
2016 (Dkt. #40-41), and Defendants filed their reply on December 9, 2016,
(Dkt. #44).
On June 26, 2017 — while Defendants’ motion to dismiss was sub
judice — the Second Circuit issued Crupar-Weinmann II. See Crupar-Weinmann
6

v. Paris Baguette America, Inc., 861 F.3d 76 (2d Cir. 2017). That opinion
affirmed the district court’s grant of defendant’s motion to dismiss because the
plaintiff had not alleged “an injury in fact sufficient to establish Article III
standing to bring a claim alleging a bare procedural violation of FACTA.” Id. at
82. That same day, this Court ordered the parties to file supplemental
memoranda of law addressing the effect of Crupar-Weinmann II on Defendants’
motion to dismiss. (Dkt. #52). Defendants and Plaintiffs each filed a
Supplemental Memorandum of Law on July 10, 2017. (Dkt. #53-54).
DISCUSSION
There are two legal issues before the Court: (i) whether Plaintiffs have
Article III standing, and (ii) whether the Court should grant Plaintiff Trisal leave
to amend the First Amended Complaint. For the reasons set forth below, the
Court concludes that Plaintiffs lack Article III standing and that it would be
futile to give leave to amend to Plaintiff Trisal.
A.

Because Plaintiffs Lack Standing, the Court Grants Defendants’
Motion to Dismiss Under Rule 12(b)(1)
1.

Applicable Law
a.

Motions to Dismiss under Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) permits a defendant to assert
lack of subject-matter jurisdiction as a defense by motion. Fed. R. Civ.
P. 12(b)(1). To assert federal subject-matter jurisdiction, a party must have
Article III standing — “the personal interest that must exist at the
commencement of the litigation.” Carter v. HealthPort Techs., LLC, 822 F.3d
47, 55 (2d Cir. 2016) (citing Davis v. Fed. Election Comm’n, 554 U.S. 724, 732
7

(2008)). A standing issue may be raised at any stage in a litigation, id. (citing
Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006)), and “‘[t]he party invoking
federal jurisdiction bears the burden of establishing the[ ] elements’ of Article
III standing,” id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1997)).
On a Rule 12(b)(1) motion, the challenge to subject-matter jurisdiction
may be facial or fact-based. Carter, 822 F.3d at 55. When considering a facial
challenge, a court must determine whether the pleading “allege[s] facts that
affirmatively and plausibly suggest that [the plaintiff] has standing to sue.” Id.
(quoting Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir.
2011)). For purposes of a 12(b)(1) facial challenge, a court accepts all factual
allegations as true and draws all reasonable inferences in favor of the plaintiff
asserting jurisdiction. Id. (citing W.R. Huff Asset Mgmt. Co., LLC v. Deloitte &
Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008); Lunney v. United States, 319
F.3d 550, 554 (2d Cir. 2003)). In contrast, to support a fact-based 12(b)(1)
challenge, a defendant may proffer evidence beyond the pleadings. Id. (citing
Amidax, 671 F.3d at 145). To oppose such a motion, a plaintiff must present
controverting evidence “if the affidavits submitted on a 12(b)(1) motion … reveal
the existence of factual problems” with respect to jurisdiction. Id. (quoting
Exchange Nat’l Bank of Chi. v. Touche Ross & Co., 544 F.2d 1126, 1131 (2d Cir.
1976)).

8

b.

Article III Standing for FACTA Violations

FACTA requires that businesses exclude certain information from
transaction receipts. 15 U.S.C. § 1681c(g). The statute states, in relevant part,
that “no person that accepts credit cards or debit cards for the transaction of
business shall print more than the last 5 digits of the card number or the
expiration date upon any receipt provided to the cardholder at the point of the
sale or transaction.” Id. This Court’s treatment of FACTA and a party’s ability
to claim Article III standing under it are dictated by a trilogy of recent cases
detailed below: Spokeo, Strubel, and Crupar-Weinmann II.
i.

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016)

In Spokeo, the Supreme Court reaffirmed the long-standing “irreducible
constitutional minimum” necessary to establish Article III standing in the
context of a statutory violation (in that case, a violation of the Fair Credit
Reporting Act of 1970, 15 U.S.C. § 1681). 136 S. Ct. at 1542, 1547 (quoting
Lujan, 504 U.S. at 560). To bring a claim in a federal court, a “plaintiff must
have [i] suffered an injury in fact, [ii] that is fairly traceable to the challenged
conduct of the defendant, and [iii] that is likely to be redressed by a favorable
judicial decision.” Id. (citing Lujan, 504 U.S. at 560-61; Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)).
Injury in fact is the “[f]irst and foremost” of the standing elements,
Spokeo, 136 S. Ct. at 1547 (quoting Steel Co. v. Citizens for Better Env’t, 523
U.S. 83, 103 (1998)), and requires a plaintiff to show “‘an invasion of a legally
protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent,
9

not conjectural or hypothetical,’” id. at 1548 (quoting Lujan, 504 U.S. at 560).
A concrete injury is one that “actually exist[s]” — meaning it is “‘real,’ and not
‘abstract.’” Id. (citations omitted). “[I]t is settled that Congress cannot erase
Article III’s standing requirements by statutorily granting the right to sue to a
plaintiff who would not otherwise have standing.” Id. at 1547-48 (quoting
Raines v. Byrd, 521 U.S. 811, 820, n.3 (1997)). Significantly for purposes of
the present motion, Spokeo held that just because Congress has elevated an
intangible harm to a legally cognizable injury does not “automatically satisf[y]
the injury-in-fact requirement,” and, further, that a “bare procedural violation”
may be insufficient to confer Article III standing. Id. at 1549 (emphasis added)
(citing Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009)).
ii.

Strubel v. Comenity Bank, 842 F.3d 181 (2d Cir.
2016)

In Strubel, the Second Circuit elaborated on Spokeo’s effect on plaintiffs
alleging bare procedural violations in the context of an alleged violation of the
Truth in Lending Act, 15 U.S.C. §§ 1601-1677f. 842 F.3d 181, 189 (2d Cir.
2016). The Strubel Court explained that the violation of a “procedural right in
vacuo” — one without a connection to a concrete interest — does not confer
standing. Id. (quoting Summers, 555 U.S. at 496). In the context of such an
intangible harm, the test to determine if a procedural violation constitutes an
injury in fact is “whether Congress conferred the procedural right in order to
protect an individual’s concrete interests.” Id. And “where Congress confers a
procedural right in order to protect a concrete interest, a violation of the

10

procedure may demonstrate a sufficient ‘risk of harm’ to the underlying
interest to establish concrete injury without ‘need [to] allege any additional
harm beyond the one Congress has identified.’” Id. (quoting Spokeo, 136 S. Ct.
at 1549) (emphasis in original).
iii.

Crupar-Weinmann v. Paris Baguette America, Inc.,
861 F.3d 76 (2d Cir. 2017) (“Crupar-Weinmann II”)

Finally, in Crupar-Weinmann II, the Second Circuit addressed this case
law in the context of a claimed FACTA violation. To review, Plaintiff CruparWeinmann alleged that a seller included the full expiration date of her credit
card on her receipt. Crupar-Weinmann v. Paris Baguette America, Inc., 861
F.3d 76, 78 (2d Cir. 2017). But she claimed no further injury, such as identity
theft or credit card fraud. Id. The Second Circuit held that this injury — “the
printing of an expiration date on an otherwise properly redacted receipt” —
“does not constitute an injury in fact sufficient to establish Article III standing
to bring a claim alleging a bare procedural violation of FACTA.” Id. at 82.
In reaching this conclusion, the Crupar-Weinmann II Court reviewed the
legislative history of FACTA to determine if including a card’s expiration date
on a transaction receipt “present[ed] a material risk of harm to the underlying
concrete interest Congress sought to protect” in passing FACTA. CruparWeinmann II, 861 F.3d at 81. In particular, the Court considered Congress’s
passage, in 2007, of the Credit and Debit Card Receipt Clarification Act (the
“Clarification Act”), which stated that “‘[e]xperts in the field agree that proper
truncation of the card number, … regardless of the inclusion of the expiration

11

date, prevents a potential fraudster from perpetrating identity theft or credit
card fraud.’” Id. (quoting Pub. L. 110-241, § 2(a)(6), 122 Stat. 1565, 1565
(2007) (emphasis added)). The purposes of the Clarification Act were to clarify
FACTA, to ensure consumers were protected from actual harm to their identity
or credit, and to limit “abusive lawsuits that do not protect consumers but only
result in increased cost to business and potentially increased prices to
consumers.” Id. (quoting Pub. L. 110-241, § 2(b), 122 Stat. at 1566).
Ultimately, the Second Circuit found significance, for the standing
analysis, in Congress’s clarification that printing an expiration date on a
receipt did not increase the risk of material harm to the identity or credit of a
cardholder. Crupar-Weinmann II, 861 F.3d at 81. And in turn, the Court held
that “the printing of an expiration date on an otherwise properly redacted
receipt does not constitute an injury in fact sufficient to establish Article III
standing to bring a claim alleging a bare procedural violation of FACTA.” Id. at
82.
2.

Analysis

Crupar-Weinmann II makes clear that Plaintiffs lack Article III standing.
Just as in that case, Plaintiffs here allege only that the expiration dates of their
cards were printed on their receipts. Neither alleges that their identities were
stolen or that credit card fraud was perpetrated against them. Neither alleges
that Defendants publically exposed their receipts in a way that would have
increased their risk of material harm. Plaintiffs allege only that they were
subjected to “an increased risk of identity theft and credit and or debit card
12

fraud.” (FAC ¶ 51). Plaintiff Trisal represents that he can allege that additional
information was printed on his receipt, and that this information increased his
risk of material harm. (Pl. Supp. 2). But the copy of the Trisal receipt that is
on the record of this case is redacted, such that the Court cannot say that he
suffered a cognizable harm under FACTA. (Dkt. #37-1). Therefore, the Court
concludes that both Plaintiffs lack Article III standing and that Defendants’
motion to dismiss must be granted.
There are various arguments that Plaintiffs made in their first opposition
brief that no longer stand in the wake of Crupar-Weinmann II. First, Plaintiffs
argued that their case was distinguishable from Spokeo because that case
involved procedural rights, while Plaintiffs allege a violation of substantive
rights that were sufficient to confer Article III standing. (Pl. Opp. 7-8 (citing
Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-374 (1982))). That
argument fails: In Crupar-Weinmann II, the Second Circuit explicitly treated
the printing of an expiration date on a receipt as a bare procedural violation.
Crupar-Weinmann II, 861 F.3d at 82. Second, Plaintiffs argued that failure to
follow FACTA truncation provisions is a per se concrete injury. (Pl. Opp. 1011). Again, this argument fails in light of Crupar-Weinmann II, because
printing an expiration date on a receipt, standing alone, is insufficient to confer
standing. Crupar-Weinmann II, 861 F.3d at 82. Third, Plaintiffs argued that
because FACTA protects rights rooted in the common law and because courts
should defer to Congress on policy decisions, a violation of FACTA’s provisions
confers Article III standing. (Pl. Opp. 13-17). But as the Crupar-Weinmann II
13

Court explained, FACTA’s legislative history demonstrates the opposite, i.e.,
Congress’s conclusion that printing a card’s expiration date on a receipt does
not increase the risk of harm that FACTA was designed to prevent — identity
theft and fraud. Crupar-Weinmann II, 861 F.3d at 81. Put simply, none of the
arguments Plaintiffs made in their brief opposing Defendants’ motion to
dismiss withstand scrutiny after Crupar-Weinmann II.
Plaintiffs do little to resist these conclusions in their post-CruparWeinmann II supplemental brief. They argue that (i) the Second Circuit’s
decision should not result in dismissal, “[a]t least as to [P]laintiff [ ] Trisal,”
because he can allege something more than just the printing of his card’s
expiration date, and (ii) any dismissal for lack of subject-matter jurisdiction
must be without prejudice. (Pl. Supp. 1). Defendants respond that the
allegations made in the First Amended Complaint are “indistinguishable” from
those at issue in Crupar-Weinmann II and that the First Amended Complaint
should thus be dismissed because Plaintiffs lack Article III standing. (Def.
Supp. 1, 3).
Defendants have the better arguments. The allegations in CruparWeinmann II are the same as those in this case — an expiration date printed on
a receipt with no concrete injury. Crupar-Weinmann II left no doubt that
alleging that a card’s expiration date was printed on a receipt, absent some
other allegation that elevated the risk of identity theft or fraud to one that is
material, is itself insufficient to establish an injury in fact that confers Article
III standing. A plaintiff must allege something more. And as Plaintiffs’
14

supplemental brief seemingly acknowledges, Crupar-Weinmann II confirms that
the First Amended Complaint must be dismissed with respect to Plaintiff
O’Shea.
The First Amended Complaint does allege that Plaintiff Trisal’s receipt
“contained, among other things,” his card’s expiration date and the last four
digits of his card number. (FAC ¶ 4 (emphasis added)). But it does not specify
what those “other things” are, or what, if anything, makes them significant.
Therefore, the First Amended Complaint, even as it relates to Plaintiff Trisal, is
on its face “indistinguishable” from the complaint in Crupar-Weinmann II.
Thus, the First Amended Complaint is not sufficient to establish that either
Plaintiff has Article III standing.
But the Court need not limit itself to the First Amended Complaint to
determine if Plaintiff Trisal has standing. “[W]here jurisdictional facts are
placed in dispute, the court has the power and obligation to decide issues of
fact by reference to evidence outside the pleadings,” including affidavits and
exhibits. Feldheim v. Fin. Recovery Servs., Inc., — F. Supp. 3d —, 2017 WL
2821550, at *2, No. 16 Civ. 3873 (KMK) (S.D.N.Y. June 29, 2017) (quoting
Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir.
2014)). Defendants attached a copy of the Trisal Receipt to the Declaration of
Jonathan A. Direnfeld. (Dkt. #37). But the Receipt is redacted in such a way
that the Court cannot determine what additional information beyond the
expiration date was printed on it.

15

The only allegation in the First Amended Complaint is that there are
“other things” on the Trisal Receipt, and the Receipt itself provides no further
information. Thus, the Court cannot say that the “other things” on the Trisal
Receipt, alone or in combination with the printing of the expiration date,
constitute an injury sufficient to confer Article III standing. Defendants’ motion
to dismiss is therefore granted in full, and the Court dismisses Plaintiffs’ First
Amended Complaint. Plaintiffs are correct that this dismissal must be without
prejudice. See John v. Whole Foods Mkt. Grp., Inc., 858 F.3d 732, 735 (2d Cir.
2017) (“‘[W]here a complaint is dismissed for lack of Article III standing, the
dismissal must be without prejudice,’ [because] … ‘without jurisdiction, the
district court lacks the power to adjudicate the merits of the case’ or ‘dismiss a
case with prejudice.’” (quoting Carter, 822 F.3d at 54-55)). 2
B.

Because Amendment Would Be Futile, the Court Denies Plaintiff
Trisal’s Request for Leave to File a Second Amended Complaint
Plaintiff Trisal has requested leave to file a Second Amended Complaint.

(Pl. Supp. 7). If provided the opportunity, Plaintiff Trisal represents that he
would plead that the Trisal Receipt contained (i) the brand of his card, (ii) the
last four digits of his card number, (iii) his full name, (iv) his physical address,
(v) his telephone number, and (vi) his email address. (Pl. Supp. 2). He also

2

Because Plaintiffs lack Article III standing, this Court lacks subject-matter jurisdiction
to adjudicate Defendants’ 12(b)(6) motion. “If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ.
P. 12(h)(3); see also Carter v. HealthPort Techs., LLC, 822 F.3d 47, 54 (2d Cir. 2016)
(“[W]here a complaint is dismissed for lack of Article III standing … [s]uch a dismissal is
one for lack of subject matter jurisdiction … and without jurisdiction, the district court
lacks the power to adjudicate the merits of the case.” (citations omitted)).

16

proposes to plead that this additional information increased the risk of material
harm, such as identity theft or credit card fraud. (Id.). Because amendment
would not cure Plaintiff Trisal’s standing deficiencies, the Court denies his
request.
1.

Applicable Law

“[A] party may amend its pleading only with the opposing party’s written
consent or the court’s leave. The court should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2). But leave to amend can be denied if a court
finds that it would be futile. Grullon v. City of New Haven, 720 F.3d 133, 140
(2d Cir. 2013) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Futility is a
legal determination that the proposed amendments would not “cure prior
deficiencies” in the pleadings, such as a failure to allege standing. Pyskaty v.
Wide World of Cars, LLC, 856 F.3d 216, 224-25 (2d Cir. 2017) (quoting Panther
Partners, Inc. v. Ikanos Commc’ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012)). “In
general, when assessing whether an amended complaint would state a claim,
[courts] consider ‘the proposed amendment[s] … along with the remainder of
the complaint,’” id. at 225 (quoting Starr v. Sony BMG Music Entm’t, 592 F.3d
314, 323 n.3 (2d Cir. 2010)), accept as true all non-conclusory factual
allegations, and draw all reasonable inferences in the plaintiff’s favor, id. (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
2.

Analysis

Plaintiff Trisal’s request for leave to file a Second Amended Complaint is
denied. To begin, the Court notes that the information that the Trisal Receipt
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allegedly contains is not proscribed by FACTA. FACTA states only that “no
person … shall print more than the last 5 digits of the card number or the
expiration date upon any receipt[.]” 15 U.S.C. § 1681c(g). To be sure, it is
theoretically possible that the additional information that Plaintiff Trisal alleges
was printed on his receipt could increase the risk of identity theft or fraud. But
as presented in Plaintiffs’ supplemental brief, that risk is no less speculative
than the risk alleged in the First Amended Complaint and in Crupar-Weinmann
II. Put somewhat differently, the Court does not believe that the information
contained in the proffered amendments “presents a material risk of harm to the
underlying concrete interest Congress sought to protect” in passing FACTA.
Crupar-Weinmann II, 861 F.3d at 81 (internal citation omitted). Importantly,
the card number on the Trisal Receipt was properly truncated. This Court
cannot see how the risk of identity theft or fraud is elevated from possible to
plausible, or to “a degree of risk sufficient to meet the concreteness
requirement,” under this set of allegations. Spokeo, 136 S. Ct. at 1550.
Something more is needed, and the alleged additional information on the Trisal
Receipt — none of which is proscribed by FACTA — does not suffice.
The additional information may yield a claim that sounds in negligence.
Printing the brand of Plaintiff Trisal’s card, the last four digits of his card
number, his full name, his physical address, his telephone number, and his
email address all on one receipt strikes the Court as potentially less than due
care. But Plaintiff Trisal does not hint at a negligence claim in the
supplemental brief, and it is not the Court’s responsibility to identify possible
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claims on his behalf. Because Plaintiff Trisal’s proposed amendments would be
insufficient to confer Article III standing, they are futile and Plaintiff Trisal’s
request to amend is denied. See Berrian v. Pataki, 510 F. Supp. 2d 348, 356
(S.D.N.Y. 2007) (granting motion to dismiss for lack of standing and denying
leave to amend because plaintiff could “articulate no set of facts that would
confer standing,” rendering amendment futile).
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(1) is GRANTED, and Plaintiffs’ First
Amended Complaint is DISMISSED WITHOUT PREJUDICE. Plaintiff Trisal’s
request for leave to amend is DENIED.
The Clerk of Court is directed to terminate all pending motions, adjourn
all remaining dates, and close this case.
SO ORDERED.
Dated:

August 3, 2017
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

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